topQ: Has the Directive been implemented in your country? If so, please add the references and the texts of relevant legislative and administrative measures and the dates they entered into force.

answer Ireland

A: The Directive has not been implemented by Ireland which has maintained its “opt-out”. This means that Ireland is not bound by the provisions of the Directive as such and much of the questionnaire is not relevant. However, it may be helpful to outline the current position in Ireland in relation to the areas mentioned.

topQ: Has there been a political or public debate on the implementation of the Directive? If so, please summarize the main issues of the debate.

answer Ireland

A: The issue of family reunification has been the subject of political and public debate in two main respects.
First, a number of agencies and NGOs have pointed to serious difficulties with a rather opaque, arbitrary and discretion-based approach to family reunification. It should be noted that an important recent critical study – by the Immigrant Council of Ireland – notes that Ireland has not signed up to the Directive, but does not recommend that it do so.
Second, the question of family unity has been central in the debate on the right of non-national parents of Irish citizen born children to reside in Ireland together with their children. This problem is, in a sense, of historical importance, since, following constitutional changes in 2004, children born in Ireland of non-national parents no longer have an entitlement to citizenship.

topQ: What have been the main changes in the national law or practice due to the Directive. Please indicate for each change whether it improved or deteriorated the legal status of third country nationals and their family members? Did it make the national rules more strict or more liberal?

topQ: Did the judgment of the Court of Justice of 27 June 2006 in the case Parliament v. Council (C-540/03) already have any effect on the implementation of the Directive, the national practice or case-law or the legal literature? If so, please specify the effects.

answer Ireland

A: I'm not aware of the judgement having any effect. It may be of
interest to know that, in the main contribution to the debate, the Immigrant Council of Ireland did not really look at the possible impact of the Directive and referred to international, rather that EU, standards and practice.

topQ: Article 3(1): How is the clause: who has reasonable prospects of obtaining the right of permanent residence implemented in the national law?

answer Ireland

A: Not applicable.

Broadly speaking, there are three categories of migrants with different entitlements to family reunification: (a) EU citizens; (b) refugees; (c) other migrants resident in Ireland.
Those in category c, in common with Irish nationals, have no legal entitlement to family reunification, which is available only as matter of administrative discretion. As a matter of practice, the residency status of the sponsor will be relevant in considering an application. Doubtless, an application from a migrant who is likely to remain – and ultimately have indefinite leave to remain – will be considered favourably.

topQ: Article 3(3):
Are nationals of your country and their third country national family members entitled to the same treatment, to a more privileged treatment or to less favourable treatment as provided in the Directive? Please specify the differences.

answer Ireland

A: As seen above, both categories are subject to the same discretionary regime. It may be that, in practice, Irish nationals will be able to avail of family reunification more easily than third country nationals, but this is difficult to verify.

topQ: If children over 15 are prevented from applying for family reunification under what conditions are they entitled to reside considering the obligation for Member States second sentence of Article 4(6)?

topQ: Article 4(3) (unmarried partners)
Has the provision on the admission of unmarried partners been implemented in national law? If so, under what conditions do they have a right to family reunification?

answer Ireland

A: Irish law does not give legal recognition to unmarried couples in Ireland, whether different or same sex (though this is currently the subject of review).
As far as family reunification is concerned, there appear to be significant difficulties for sponsors seeking to be joined by an unmarried partner. There are no specific rules applying to fiancé(e)s. It seems that unmarried partners frequently seek to enter Ireland independently, often by acquiring a precarious short-term immigration status not linked to the sponsor partner.

topQ: Article 4(5) (minimum age spouse)
Does the national law require a minimum age for the admission of spouses that is higher than 18 years? If so what is the minimum age?

answer Ireland

A: There is no requirement of a minimum age for the admission of spouses higher than 18 years. Concerns about arranged or forced marriages are likely to be taken into account by the Minister in exercising his discretion and such concerns may, of course, surface more easily where the spouse is aged under 18.

topQ: Does the applicant have to pay any fees and, if so, what is the (total) amount of those fees?

answer Ireland

A: In relation to visa applications, applications must ordinarily be made to an Irish Embassy or Consultate in the country of permanent residence, or to an Embassy or Consulate designated in another State, and only exceptionally to the Department of Justice. A detailed document, updated in August 2006, contains details of the documentation required. In addition to a description of minimum documentation required for all visa applications, there are specific sections on visas for persons seeking to join their spouse/parent on a work permit, for family members of Irish nationals and for family members of refugees. There is also a detailed document, again updated in August 2006, on visa requirements for family members seeking to join non-EEA nationals with a work permit.
There is a fee of EUR 60 for a single entry visa.

In relation to residence applications, which are made in writing to the Immigration Division of the Department of Justice, there is no prescribed application form, and no guidance on making an application or the documentation to be provided. There is no fee.

topQ: Article 5(4) (length of the procedure)
Is there any time limit for the decision on the application by the administration?

answer Ireland

A: There is no prescribed time limit for a decision on the application. The Department of Justice states on its website that “visa applications will be processed in the fastest possible time following their arrival in the Visa Section in Dublin”. It is, however “strongly advised” that applications are made at least eight weeks prior to departure date and that all supporting documentation is included.

topQ: Article 5(5) (interest of the child)
How is the provision that Member States 'shall have due regard to the best interests of minor children' implemented in national law?

answer Ireland

A: Given the discretionary nature of the process, it is difficult to judge how the authorities pay “due regard to the best interests of minor children”.
In relation to visa applications, the consent of both parents will need to be given if a child under 18 is to travel alone. If he/she is to travel with one parent, the consent of the other must be obtained. Official evidence (in the form of a Court order) must be provided where only one parent has total custody/access rights.

topQ: Article 6 (public policy exception)
How has the public policy and public security exception been implemented and defined in the national law?

answer Ireland

A: Given the discretionary nature of the process, there is no specific public policy or public security exception. The discretion is that of the Minister for Justice, Equality and Law Reform. It is difficult to speak of a public policy "exception" where the Minister can refuse reunification as a matter of discretion. However, the Minister may have regard to public policy concerns in deciding not to allow family reunion and there is really no framework, as in the EU, for defining the permissible bounds of the public policy exception.

topQ: Article 7(1)(a) and (c)(income and housing)
How is the income requirement specified in the national law?

answer Ireland

A: There is no prescribed income requirement, monthly or otherwise. However, a detailed bank statement for the sponsor is required for the six-month period immediately prior to visa applications and the authorities will have regard to the ability of the sponsor to support the family member in deciding whether or not to accept it. In the case of workers with a work permit, a qualifying sponsor resident in Ireland for less than 36 months must show that he/she has sufficient funds to support him/herself and family members without recourse to the Family Income Supplement.

A: No level of net monthly income has been formally set across the board. However, in relation to family reunification for a residual class of migrant workers with a work permit who have worked for at least 12 months, the sponsor must have an income above the threshold which would qualify the family for payment under the Family Income Supplement Scheme. (Migrant workers who have been working in Ireland for at least 36 months and those in specified skill sectors do not have to satisfy this condition, but it appears that regard will still be paid to the sponsor’s income and general ability to support family members.)

topQ: Article 7(2) (integration measures)
Are family members required to comply with integration measures? If so, do they have to comply before or after admission and what are they actually required to do (follow a course, pass a test, etc.)

answer Ireland

A: There is no requirement that family members comply with integration measures in Ireland.

topQ: Article 9(2) (privileges for refugees)
Which privileges granted by the Articles 10-12 are in the national law limited to family relationship that predate the entry of the refugees?

answer Ireland

A: The Refugee Act 1996 (as amended) provides that the relevant family relationship must be present at the time the application for family reunion is made. There is no limitation to family relationships predating the entry of the refugee (as applicant for recognition).

topQ: Do other protected persons than Convention refugees benefit from the provisions of Chapter V of this Directive?

answer Ireland

A: The question of family reunification for refugees is addressed by the Refugee Act 1996 (as amended). This applies only to Convention refugees. Other persons seeking international protection may seek family reunification on a discretionary basis, but this does not involve use of the special procedure applying to refugees.

topQ: Article 10(3) (family members of unaccompanied minors)
Are the parents, legal guardians or other family members of a refugee who is an unaccompanied minor, entitled to a residence permit under national law?

answer Ireland

A: Yes. Provided that the family relationship is established for the parents of an unmarried refugee under the age of 18 years, there is a right to residence in the State.

topQ: Article 11 (lack of documents)
Which rules on alternatives to official documents in case of lack of official documents proving the family relationship are provided for in the national law?

answer Ireland

A: The guidelines on requirements for family reunification for recognised refugees state that the application form should clearly state the relationship of the applicant to the Refugee in Ireland and that there should be evidence of this in the form of a marriage or birth certificate. Where these documents are not available, any alternative evidence should be considered on its merits.

topQ: Article 12 (exemption from requirements)
From which requirements for family reunification, mentioned in Article 7 or Article 8, are refugees or their family members explicitly exempted by national law?

answer Ireland

A: The Refugee Act 1996 (as amended) provides a absolute right for spouses and minor children, and a discretionary right for dependent members of the family. The provisions by implication exclude the imposition of the types of requirements addressed in Article 7.
There is no requirement for the refugee to have stay for a period of time. However, an application may be made only after the recognition of refugee status and applications can take several months.

topQ: Article 13(1) (visa facilitation)
How has the obligation to grant third country family members 'every facility for obtaining the required visas' been implemented in national law?

answer Ireland

A: Not applicable.

In Ireland, the application for entry is effectively made by way of an application for a visa where this is required. Where a visa is not required, the person concerned can enter but must then make a residence application.

topQ: Article 15 (autonomous residence permit)
After how many years are spouses, unmarried partners and children entitled to an autonomous residence permit under national law? What other conditions are they required to fulfil in order to obtain such a permit?

answer Ireland

A: There is no right to “transfer” to an autonomous residence permit after any period of time. This does not preclude an application for permission to remain on an independent basis and the Minister would doubtless have regard to a person’s “family reunification” status in deciding on that application.

topQ: Article 16(1)(b) (real family relationship)
Does the national law allow for refusal or withdrawal of a residence permit on the ground that the family member does no longer live in a real marital or family relationship? If so, which criteria have to be fulfilled under national law? Is the ground applicable to the relationship between parents and minor children?

answer Ireland

A: An application for a visa or for residence may be refused on the basis that there is no real marital or family relationship.

Where residence permit has been granted for the purposes of family reunification, the family member’s entitlement is linked to the sponsor and there is no independent residence status for that family member. Where the link ends, in the case of marital, or family, break-up (or indeed) on the death of the sponsor, the family member must establish his/her own independent status. The Minister has often been sympathetic in such cases, but not always. Such persons will often find themselves in a precarious situation and may be the subject of a deportation order.

topQ: Article 16(4) (marriage of convenience)
Does the national law contain provisions on fraud or on marriages or partnerships of conveniences? Is so are the definitions, checks and practices in conformity with Article 16(4)?

answer Ireland

A: In considering applications for visas or for residence, the Minister will address any concerns on fraud or “marriages of convenience”.

In relation to visa applications, it has been emphasised that “the provision of false, fraudulent or misleading information will result in refusal and no appeal will be permitted”. In the case of an application to join a spouse in Ireland with a work permit, the applicant is required, if the marriage took place after the spouse came to work in Ireland, to give “a detailed account of your relationship history – when/where you met, and show evidence of your spouse returning home during the relationship, and for the wedding”. Spouses of Irish citizens wishing to join their spouse must provide a full account of the relationship history, including evidence of physical face-to-face meetings (internet/telephone/sms/webcam relationships will not be accepted) and the visa officer must be satisfied that the relationship is bona fide: such requirements will also need to be satisfied by resident non-nationals seeking to be joined by their spouses.

topQ: Article 17 (relevant considerations)
How has this clause, requiring that certain specific elements are to be taken into consideration in the decision making on residence permits and removal orders, been implemented in the national law?

topQ: Article 18 (judicial review)
Are the sponsor and his family members entitled to have a negative decision reviewed by a court or independent tribunal? If so, please specify the relevant provisions in the national law and the scope of the judicial review (full review, review on legality or marginal control only)?

answer Ireland

A: A negative decision may be subject to an application for judicial review on legal grounds. Given the discretion enjoyed by the Minister it may be difficult to establish convincing grounds for such review and, in any case, the costs involved are considerable, even if an appeal succeeds.

topQ: Article 18 (judicial review)
Is (publicly funded) legal aid available for an appeal against a decision to refuse fam-ily reunification or to withdraw the residence permit of a family member?

answer Ireland

A: Publicly funded legal aid is, in principle available, but appears to
be rarely availed of in practice. The Legal Aid Board does not publicise the availability of aid in this area. Before this process, there is the possibility of an internal appeal to the Department of Justice, which has been criticised because of the lack of independence.

topQ: Please send us copies of the relevant laws and regulations, of any legal or other publications on the Directive or of judgments of national courts applying or interpreting the Directive, if possible in electronic form.